Lately, I have tried to avoid discussing Tesla and Musk much because I don't want to turn this into a dedicated blog on those two subjects. Also, with all the press (positive and negative) that it gets, another article on Tesla is about as necessary as another article on Stormy Daniels. I even resisted the urge to comment on Musk's childish need to insert himself into the Thai cave rescue story and his subsequent rant on Twitter petulantly calling one member of the rescue team a pedophile because he did not use Musk's submarine. Lol, a submarine for a rescue where one passage was so narrow a diver wearing tanks could not even squeeze through.

My will to avoid Musk and Tesla on this blog collapsed the other day when Musk personally called the employer of one of Tesla's harshest (and I would add most intelligent) critics pseudonymed Montana Skeptic, and threatened to sue the critic and get him fired unless he shut down his criticism. He succeeded, as Montana Skeptic was forced to shut down and issue this statement:

Yesterday, July 23, I decided to cease writing about Tesla (TSLA) here at Seeking Alpha web site. I also deactivated my Twitter account, where I was @MontanaSkeptic1. Here is what prompted those decisions.

Yesterday afternoon, the principal of the family office in which I am employed received a communication from someone purporting to be Elon Musk. Doubtful that Elon Musk could actually be attempting to contact him, my employer asked one of my colleagues to investigate and respond.

My colleague then spoke by phone with Elon Musk (it was indeed him). Mr. Musk complained to my colleague about my writing at Seeking Alpha and on Twitter. Mr. Musk said if I continued to write, he would engage counsel and sue me.

My colleague then spoke with me about the phone call. We both agreed that Mr. Musk’s phone call and threatened lawsuit were actions that would tend to involve our employer in matters in which he has had no part. To avoid such a consequence, I offered to immediately cease writing at Seeking Alpha and to deactivate my Twitter account.

How did Mr. Musk learn my identity, and that of my employer? It appears to me his information came thanks to the doxing efforts of some of his followers on Twitter.

I do not know what Mr. Musk’s precise complaints are about me. I do not believe he has any valid legal claim, and I would have no trepidation in defending myself vigorously were he to bring such a claim. My response to his threats were simply to protect my employer and preserve my employment.

And so, you might say, Elon Musk has won this round. He has silenced a critic. But he has many, many critics, and he cannot silence them all, and the truth will out.

Folks who have read the book "Bad Blood" about Theranos will recognize this behavior immediately. Musk took advantage of the work of some of his fanboys who bravely doxxed Montana Skeptic and allowed Musk to determine his true identity. Musk is certainly a child (emphasis on "child") of his age, preferring to force critics to shut up rather than respond to them in a reasoned manner. And by the way, where the hell is his board of directors? Just like at Uber, it is time for the grown-ups to come in and take over the visionary but flawed company started by their founder.

Over the weekend I read John Carreyrou's book Bad Blood, which is a narrative of the fraud at blood analyzer startup Theranos that Mr. Carrreyrou broke in the WSJ. To save me summarizing the story, here is the Amazon description:

In Bad Blood, the Wall Street Journal’s John Carreyrou takes us through the step-by-step history of Theranos, a Silicon Valley startup that became almost mythical, in no small part due to its young, charismatic founder Elizabeth Holmes. In fact, Theranos was mythical for a different reason, because the technological promise it was founded upon—that vital health information could be gleaned from a small drop of blood using handheld devices—was a lie. Carreyrou tracks the experiences of former employees to craft the fascinating story of a company run under a strict code of secrecy, a place where leadership was constantly throwing up smoke screens and making promises that it could not keep. Meanwhile, investors kept pouring in money, turning Elizabeth Holmes into a temporary billionaire. As companies like Walgreens and Safeway strike deals with Theranos, and as even the army tries to get in on the Theranos promise (there’s a brief cameo by James “Mad Dog” Mattis), the plot thickens and the proverbial noose grows tighter. Although I knew how the story ended, I found myself reading this book compulsively

In short, I really enjoyed the book and found it hard to put down. Carreyrou has made it an interesting narrative, that gets bogged down only slightly by the fact that there are just so many people's names that pass through the narrative, an unavoidable problem given the huge employee turnover at Theranos. There is a meta-narrative that repeats over and over: new employee shows up full of passion, new employee starts seeing bad stuff, new employee reports bad stuff to visionary founder, visionary founder fires employee on the spot, employee gets harassed for months and years by Theranos lawyers.

I will warn you that a book like this was always going to be catnip for me. I love business craziness and disaster stories (e.g. Barbarians at the Gate and the Devil's Candy). Possibly this is just schadenfreude, or possibly it was from my personal brush with another one (I worked for Jeff Skilling briefly at McKinsey & Co. on the Enron study). But I think many will enjoy it, if for no other reasons that while Skilling at Enron or Johnson at RJR were not well known to the average person, Elizabeth Holmes was a household name, almost a pop culture figure. She was on the cover of every magazine and on every talk show. She was both admired and envied, both as a young female billionaire and as someone who had a real vision to help humanity. How did she go so far off the rails?

I followed this story originally in the pages of Carreyrou's WSJ articles, and as it unfolded I was asking, like most everyone, could this be true? As he continued to report, it became steadily clearer that there was real fraud involved. So I wanted to read the book and see where the fraud started. I assumed that the central mystery of the book would be when that fateful step over the line occured.

But it turned out that Holmes was going over the line almost from the very beginning. The real mystery became: when and how is someone finally going to blow the whistle on this? And also, given that I knew the whole thing doesn't start to unravel until 2016 or so, how is it going to take that long for this to come out? Part of the answer is the insane security and non-disclosures put in place in addition to borderline-unethical legal pressure brought on potential whistleblowers by lawyers like David Boies. But there are other causes as well, including:

People wanted her vision to be true. My wife is a borderline diabetic who has to give a lot of blood -- she was very passionate about this technology.

Companies like Walgreens operated from a fear of missing out. They had a lot of clues there were problems, but if they didn't pursue it, what if it really did work and their competitors did the deal instead?

The oddest cause of all (and one Carreyrou does not really dwell on) was that rich older men fell for Holmes hard. Hardened, seasoned business people time and again fell under her sway and followed her almost like a cult leader and helped protect her from accountability. The list is like a who's who: Larry Ellison, Steven Burd (CEO of Safeway), Rupert Murdoch, David Bois, James Mattis, George Schultz, Henry Kissinger -- the list goes on and on. She had the highest power board I have ever seen at any company ever and she completely dominated them. On the other hand, I don't think there is a single young female in the story who fell for her BS for more than a few months.

One other note that I think is worth mentioning: Rupert Murdoch gets a lot of cr*p for being the poster child of destructive corporatization of media. In this story, he was the single largest investor in Theranos with $125 million of his money in the company. He was one of the older men who fell totally for Holmes. But when Holmes came to him several times asking him to shut down an out of control reporter at Murdoch-owned WSJ, Murdoch said no, despite the fact that this reporting would eventually make Murdoch's $125 million investment worthless.

Nobody really liked Jeff Skilling of Enron and he sits in jail for 20 years. We think Elizabeth Holmes is attractive and cool so that despite the fact that she committed serial fraud in lying about her company's technology and financials (far more baldly and egregiously than Skilling) and actually put people at risk through faulty medical testing, she got only a slap on the wrist.

And then there is Elon Musk.

The Economist used to be boring, but smart with a wicked dry wit. Now it’s just boring (sigh). Tesla will be profitable & cash flow+ in Q3 & Q4, so obv no need to raise money.

I am not sure how I got in the role of fact-checking Elon Musk, but given the company's stated results to date and announced operating plans and strategies, there is simply no way for the Tesla to be profitable and cash flow positive in Q3, barring some deus ex machina like a massive energy credit or California subsidy windfall. It's possible I could go in there and shut down R&D and model 3 production and milk the Model S and X for cash and might make this be true, but that is certainly not their announced business plan. On their current path Tesla has to continue to burn cash through the rest of this year. I am not even sure that if you stated their gross margin the same way that other automakers state their numbers that even it would be positive right now -- there is an argument to be made they are still losing money at the margin on every car they produce**. I would add that in this point of their ramp, if you want to see Tesla the huge success that is baked into its current stock valuation, you don't want Tesla to be cash flow positive in the third quarter, you want it continuing to invest. Amazon rules the world because it deferred profitability for years in favor of growth.

Tesla pretty much never ever lives up to Musk's promises, at least for the dates he promises them. That is probably OK with things like deliveries of new products -- people understand he is pushing technology and new products can be delayed and they forgive entrepreneurs for being -- shall we say -- overly enthusiastic about such things. But on financial stuff like this his statements are bordering on fraud. But he'll never get called on it, because we like him in a way we didn't like Skilling.

I will add that if Musk wants to get snippy about the media's guesses about his company's prospects, and thinks we are all getting it wrong, he could sure be a lot more transparent about Tesla's financials and plans. Go watch an Exxon-Mobil analyst presentation and compare it to Musk's quarterly arm-waving. Also, one final memo to Musk: responding to your critics on Twitter emulating Trump's style is not recommended. Though it might be interesting to compare the irrational populist wave behind Trump with the populist wave behind Tesla. Though the two Venn diagrams of supporters probably do not overlap much, the whole relationship feels similar to me.

Disclosure: I have been short TSLA in the past but right now have no position. To be honest, I am going to let Musk urge his fanboys to pump the stock a bit further before I short again. The fanboy effect makes TSLA a dangerous short, as TSLA stock holders will defy reality for far longer than will holders of say GE or XOM.

** gross margin at TSLA is interesting because TSLA has no dealer network, something I like them for. GM discounts its cars to their dealers (10% or so?) but in turn they offload a bunch of selling and support costs to the dealers. In their gross margin, TSLA banks in their gross margin the extra 10% from not having to discount their cars but in turn does not charge gross margin for a lot of the extra sales and support costs they have to take on -- instead they drop these costs into SG&A overhead. The situation with gross margin is even more complicated because Tesla not only has to build out and operate its own warranty service, sales, and delivery network to replace traditional dealers, it is also building out its own fueling service to replace gas stations. Here is one guy who thinks Tesla gross margin is really negative. I have zero idea who he is but for the last year his predictions about Tesla have been a lot more reliable than Musk's statements.

When Theranos founder Elizabeth Holmes announced that the company was shifting its focus, she said her team is lucky to have investors who believe in its mission. But there's at least one major investor who doesn't, and it has already sued the controversial blood-testing provider. According to The Wall Street Journal, Partner Fund Management (PFM) LP is accusing the startup of convincing it to pour $100 million into the startup by feeding it a "series of lies." The San Francisco-based hedge fund firm filed the lawsuit in Delaware today and sent out a letter to its own investors.

In the letter, the firm said:

"Through a series of lies, material misstatements, and omissions, the defendants (Theranos), engaged in securities fraud and other violations by fraudulently inducing PFM to invest and maintain its investment in the company."

At some level, shareholder lawsuits are utter madness. Consider the case where all owners of a company are suing the company. If they win, the amount they win from the company is offset by a drop in value of their ownership in the company. At best this is a break-even proposition but when lawyers fees are included, this is a recipe for immense value destruction.

I am not really an insider on these things, but my guess is that the explanation for the madness comes by relaxing my assumption above that "all owners" are suing. If only one owner is suing, then this becomes a potential mechanism for transferring value from other owners or investors. There are of course real situations where a certain minority class of shareholders is screwed by the majority, but I don't think that is the case here. In the case of Theranos, I assume the whole company is headed into a messy bankruptcy, and PFM is racing to the courthouse to be first in what is sure to become a messy litigation-fest. They likely have one or both of these goals

Since they likely cannot sell their equity and cash out normally, given the uncertainty about the company's future, they may be able to effectively cash out by getting other owners to pay them off in a settlement of this suit.

Since their equity may be worth zero soon, if they can win a lawsuit the payout becomes a much more senior form of indebtedness and might move them up towards the front of the line for any value that still exists in the company

Update: From one of my readers at a CPA firm: A key reason for shareholder suits is to trigger insurance coverage payouts for management and/or Board errors and omissions. This in theory both increases the company’s assets and creates a senior claim by the plaintiffs to those particular assets.